What’s Next for the Supreme Court’s Transgender Bathroom Case?

The case revolves around the interpretation of a federal regulation that bans discrimination “on the basis of sex” in schools that receive federal money. The legal question is whether it can also ban discrimination based on gender identity.

hear oral argument in the case next month, if not before. (Getty Images)

Although the Supreme Court will hear oral arguments in the case next month, if not before, the Trump administration’s reversal of a rule on transgender students’ rights could potentially remove the case from the Court’s docket. (Getty Images)

The fate of the most controversial case the Supreme Court has agreed to decide this term is uncertain now that the Department of Education (DOE) has issued a “Dear Colleague” letter withdrawing a previous letter requiring school districts to allow transgender students to use the bathroom consistent with their gender identity.

Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states that, if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex,” they must provide comparable facilities for the other sex. In a 2015 letter DOE interpreted the Title IX regulation to mean that, if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity.

The Supreme Court has agreed to decide two questions in Gloucester County School Board v. G.G.  First, should it defer to DOE’s letter interpreting the regulation? Second, putting the letter aside, should the Title IX regulation be interpreted as DOE suggests?

G.G. is biologically female but identifies as a male. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district, arguing that it discriminated against him in violation of Title IX. The Fourth Circuit Court ruled in favor of G.G, giving Auer deference to DOE’s letter.

Per Auer v. Robbins (1997), a court generally must defer to an agency’s interpretation of its ambiguous regulations. According to the Fourth Circuit, the Title IX regulation is ambiguous because it is “susceptible to more than one plausible reading because it permits both the Board’s reading (determining maleness or femaleness with reference exclusively to genitalia) and the Department’s interpretation (determining maleness or femaleness with reference to gender identity).”

Despite the 2015 letter being rescinded, both parties still want the Supreme Court to decide this case. On SCOTUSblog, Amy Howe describes some of the Court’s options: “Among other things, they could send the case back to the Fourth Circuit for it to weigh in more fully on the Title IX question in light of the government’s changed position, or they could forge ahead and rule on that question themselves. At the very least, we should know more about the justices’ inclinations when they hear oral arguments in the case next month, if not before.”

Putting aside the factual context of this case, state and local governments, acting through the State and Local Legal Center, have criticized Auer deference in Supreme Court amicus briefs. The Gloucester County School Board asked the Supreme Court to decide whether to overturn Auer, but the Court refused to consider this question.

Two states – Tennessee and Arkansas – have passed laws that preempt local non-discrimination provisions.

“Preemption efforts – where state law nullifies a municipal ordinance or authority – lead to a loss of local control and can have far-reaching economic and social impacts in our communities,” said National League of Cities (NLC) CEO and Executive Director Clarence E. Anthony. NLC’s latest report, City Rights in an Era of Preemption, examines the prevalence of state preemption across the country.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

Meet Your City Technology and Communications Advocate

“It can seem tempting to default on the side of industry in the hopes of spurring innovation, but obviously you cannot prioritize the needs of one entity or company over those of all the other actors in the room – namely, local governments.”

Every week leading up to the Congressional City Conference, we will continue to feature “Meet Your City Advocate” spotlights as part of a series introducing you to NLC’s Federal Advocacy team. This week, I sat down with Angelina Panettieri, principal associate for technology and communications advocacy at NLC.

Angelina4.jpg

Angelina Panettieri is the principal associate for technology and communications at NLC (Brian Egan/NLC).

Name: Angelina Panettieri
Area of expertise: Technology and Communications
Hometown: near Winchester, Virginia
Federal Advocacy Committee: Information Technology & Communications (ITC)

Angelina, thanks for your time today. To start off, can you tell us about your background?

I grew up out in the country near Winchester, Virginia. So, fun fact: I never lived in a real city until college. Undergrad was the first time I lived in a place with sidewalks. I earned a BA and an MPA from George Mason University. I always knew I wanted to work in policy, and have worked for several other organizations before joining NLC. One of my first jobs was with a group that represented smaller chemical companies. I later joined an association that works with pharmacists. Now I work in technology and communications policy for cities, so you can see that I’ve always been interested in wonky technical topics. I started at NLC a few years back, working in grassroots advocacy.

So what specifically attracted you to technology and communications policy? 

It always interested me. It’s an area that seems to be growing. Technology and communications are areas that will likely shape our lives the most over the immediate future — and that means a lot for cities. Technology is starting to determine how we move around, what our housing looks like, what are jobs are, how we treat our patients.

There’s something we often say — broadband is no longer a luxury, it’s a necessity. I compare it to the rural electrification project. Like the families that remained off-the-grid in the first half of the 20th century, we’re rapidly moving toward a world where internet is a necessary ingredient to success. Many people don’t realize that a huge portion of NLC’s members are small cities, and these are the places that are still working to get online. It’s exciting for me to advocate for them.

What do you think 2017 has in store for technology and communication policy, as far as cities are concerned?

I think this year will be interesting. We haven’t heard a lot from the president about where he wants to take tech policy – other than outspoken support for infrastructure and manufacturing, which will inevitably involve technology. Congress has had a backlog of technology-focused bills that they were not able to pass last year; I expect they will have more success this year. These bills are largely noncontroversial: expanding available spectrum, incentivizing infrastructure that includes broadband, etcetera. There are two places, however, that I think we should focus on: the FCC and state legislatures.

The new FCC chair, Commissioner Ajit Pai, has already indicated that he will shake things up over there. Our goal is to maintain a dialogue with all the commissioners and ensure that major policy changes are only made after the needs of cities have been considered. It can seem tempting to default on the side of industry in the hopes of spurring innovation, but obviously you cannot prioritize the needs of one entity or company over those of all the other actors in the room, namely local governments.

On the state side of things, we are seeing telecom and other technology bills moving very quickly through state houses. NLC doesn’t lobby state legislatures, but in this policy area in particular, we are seeing states drive a lot of what’s happening on the ground. I think Congress will continue to watch what’s happening in states as inspiration for federal policy in the future. But I may be jumping ahead to a 2018 or 2019 prediction.

Did you want to touch upon the 5G comment period going on right now?

Yes, of course! We’re involved in a proceeding at the FCC that’s focused on the local government permitting process for small cell wireless infrastructure. This is all leading up to the deployment of a new 5G wireless standard. The wireless industry is working to provide faster service to its customers, which requires moving up the spectrum. As you go higher, you need smaller antennas to broadcast a signal, and you need many more of them located closer together.

It’s a competition to offer the best 5G first, which means every company has already started applying for permits to install hundreds of thousands of these “small cells.” Now, the FCC is looking into whether existing regulations and permitting processes – mostly at the local level – are slowing this deployment down. NLC is most concerned about maintaining cities’ rights to protect their residents’ rights of way, and ensuring that they continue to get proper compensation for its use. 5G needs to happen without overwhelming and ignoring the needs of local governments.

Fascinating! And now for the hardest question: what’s your spirit city?

I have had a lot of time to think about this, so I can say with certainty: Wildwood, New Jersey.

Get out! You know I’m a South Jersey kid, so shore trips to Wildwood define my childhood.

I did not know that!

I’m glad someone doesn’t hear my accent. Why Wildwood, is it all of that Googie architecture?

Yes, I love Googie architecture! Really, I love everything about Wildwood. They have such a great pride in their history and fully embrace how quirky it is. I could spend every summer of my life there. They’ve doubled down on the classic fifties beach image and they run with it.

Join us at the 2017 Congressional City Conference and meet Angelina and the rest of your City Advocates.

brian-headshotAbout the author: Brian Egan is the Public Affairs Associate for NLC. Follow him on Twitter @BeegleME.

 

City Authority Varies Widely From State to State

In a new report, NLC finds that states limit city power through preemption in a number of policy areas, ranging from labor protections to taxing authority.

(Getty Images)

In some cases, preemption can lead to improved policy statewide. However, preemption that prevents cities from expanding rights, building stronger economies, and promoting innovation can be counterproductive when decision-making is divorced from the core wants and needs of community members. (Getty Images)

State legislatures have gotten more aggressive in their use of preemption in recent years. Preemption is the use of state law to nullify a municipal ordinance or authority. Proponents of preemption argue that it equalizes laws across the state, preventing individuals and firms from navigating a patchwork of regulation. Preemption creates a problem, though, because it means a loss of local control for cities. This can have negative effects on local economies and the rights of marginalized groups. Moreover, these laws counter the intentions of local leaders and their communities.

As preemption efforts often concern a politically divisive issue, they rely on single-party dominance to pass through state legislatures. As of the 2016 election cycle, Republicans have 25 government trifectas, meaning they control both legislative chambers and the governor’s office. Democrats have trifectas in six states, but control a larger portion of city halls. Several states where there has been single-party control over the last decade, including Georgia, Michigan, North Carolina, Ohio and Wisconsin, have seen increases in preemption.

In our new report, City Rights in an Era of Preemption: A State-by-State Analysis, we closely examine seven different policy areas for preemptive state policies. The following is an overview of our findings:

  • 24 states preempt local minimum wage ordinances
  • 17 states preempt local paid leave ordinances
  • three states explicitly preempt local anti-discrimination ordinances
  • 37 states limit local authority to regulate ride sharing
  • three states limit local authority to regulate home sharing
  • 17 states preempt localities from establishing municipal broadband service
  • 42 states limit local fiscal authority through tax and expenditure limitations

Our analysis finds extensive variation in the number of preemptions and the application of these laws across states. Only two states, Connecticut and Vermont, do not preempt their cities in any of the seven policy areas we examined. On the other hand, 18 states preempt their cities in at least four of the policy areas.

Ultimately, state preemption limits the ability of cities to address critical local issues and uphold the values of those living in their communities. Our call for local control is intended to give cities the ability to adapt and to have the tools they need to build stronger economies, promote innovation, and move their states – and ultimately the country – forward.

Click here to read the full NLC report.

Trevor Langan 125x150About the author: Trevor Langan is the Research Associate for City Solutions and Applied Research at the National League of Cities.

The Difference Between Serving Startups and Scaleups

City leaders have the power to help local entrepreneurs start, scale, and retain their businesses – but each stage of development calls for different tactics.

(Getty Images)

Local elected officials have the influence required to pull specific city policy levers and build a supportive environment for small businesses and startups. (Getty Images)

This is a guest post by Penny Lewandowski, a NLC University seminar speaker. The post was originally published here.

In the business arena, one size does not always fit all. Businesses come in different sizes, with different needs, cultures, methods of learning, and ways of communicating. And while it can be tempting for city officials to develop programs designed to serve everyone, this easy-way-out approach can be a quick road to failure – particularly with growth businesses that are often ignored simply because they are perceived as more challenging to serve.

Startups and small businesses are hungry – for information, for basic help, and to be around anyone who has taken the path before them and has lessons to share. Their issues are more operational than strategic, and a one-to-many approach works well since many of them are looking for the same thing. Startups are often willing to accept advice – and they love to network, so the more the merrier.

Second-stage businesses, or scaleups – those with 10 to 99 employees and revenues around $1 million to $50 million – face very different issues that are more strategic than operational. They are expanding their teams and markets and are sometimes in the process of diversifying industries. Scaleups are less likely to accept advice because there is a good chance they’ve already cultivated trusted sources of information.

So who do second-stage businesses trust? Their peers. Demonstrate you appreciate their differences by developing peer-to-peer networks such as CEO roundtables and putting them in front of research experts on strategic growth issues around market identification and expansion, competitor intelligence and digital marketing.

And when it comes to networking, growth companies are more selective. You’ll not likely find them at your after-hours social/networking events. Instead, get them together with a successful third-stage company willing to share their experiences – and watch the room light up. If you’re still stumped on how to serve these folks, just ask them what they need. I’ve seen amazingly innovative programs arise from one question: “What kept you up last night?”

Regardless of who you’re serving, remember the importance of speed to market. By the time you’ve finished your third study and sixth focus group, these folks have moved on to greener and speedier pastures, and you’re not likely to get them back. Gather information, get feedback, and get moving. While a one-size-fits-all approach sounds appealing, your companies will thank you for going the extra mile to understand how different they really are.

Copyright © Edward Lowe Foundation. All rights reserved. Reprinted with permission.

penny_lewandowski_125x150About the author: Penny Lewandowski is a senior consultant on external relations at the Edward Lowe Foundation. She is also a National League of Cities University (NLCU) seminar speaker at the 2017 Congressional City Conference. Click here to send Penny comments; click here to subscribe to her blog.

Forecasting the Role of Cities in Education

Both cities and the federal government want great schools because they help create a strong workforce, boosting the economy at a local and national level – but the legal and fiscal powers of both levels of government are limited, and the policies of the new administration will likely complicate this dynamic even more.

(NLC)

(NLC)

In the first installment of this series, we looked at the basics of federalism and why it matters to cities. Part two of the series focused on how one policy – affordable housing assistance – has changed with the interpretation of federalism, and what that means for cities today. In this post, we examine federalism in the context of the American educational system.

The expectation that government should provide accessible, quality education for all has become deeply engrained in the American psyche. This responsibility, however, falls squarely on the shoulders of local governments. Quality education is most often a local responsibility, increasingly paid for at the state level, and managed by policies set at the national level. More specifically, states and local school districts have always made the critical decisions about education, from who should teach to what should be taught. The role of the federal government has been more limited; education policy has long flowed from the bottom up, with the federal government often expanding innovative local policies nationally. For these reasons, education presents an interesting look at federalism.

History of National Education Policy

While the role of the federal government in education has been muted, its level of involvement has steadily increased over the last sixty years. Federal interest in schools was triggered by the launch of the Sputnik satellite by the Soviet Union in 1957 and the fear that American education was falling behind on a global scale. In 1965, President Johnson signed the Elementary and Secondary Education Act, delivering resources to poor urban and rural schools. Later in the 1960s and into the 1970s, the federal government worked to combat de facto segregation in public schools. The Department of Education became its own cabinet-level department in the Carter administration, only to see its budget severely reduced during Reagan’s tenure.

Similar to other policies, education policy followed the trend of heightened national importance during the Kennedy and Johnson administrations, with the focus shifting back to the states during the Reagan administration. However, these federal trends coupled with changes at the state level to constrain public school budgets. Funding for education, which has typically been tied to property tax revenues, started to come under threat in 1978 when California was the first state to pass a limit on local tax collection. In 1979, state spending overtook local spending as the largest source of education funding, in effect limiting local autonomy.

Today, the federal government contributes between 8 and 10 percent of the public education budget. This amounts to $55 billion annually as of FY 2013, according to the National Center for Education Statistics. Much of this funding is discretionary, which means that Congress sets the amount annually through the appropriations process.

The most recent era of federalism, while hard to define, has largely focused on accountability and performance – doing more with less money. No policy area exemplifies this better than education, and no particular legislation better than the No Child Left Behind (NCLB) act. Enacted at the outset of the George W. Bush administration, NCLB was built on the premise that standards should be equalized across states so that a school’s performance could be accurately measured. These priorities continued during the Obama administration with the Race to the Top program, which rewarded states that adopted common standards and broadened performance metrics.

In the Trump administration, the Department of Education will be led by Betsy DeVos. Secretary DeVos has been an advocate for school choice, meaning the privatization of education through school voucher programs and the expansion of charter schools. It is likely she will bring her views on education reform to the Department.

Because of recent reforms to federal education funding, local governments and school districts are under pressure to ensure schools are performing adequately or they risk losing critical funding to privatization. If Vice President Mike Pence’s tenure as Indiana governor is any indication, the Administration will likely move to expand charters and voucher programs. When the vice president was governor, Indiana shifted millions of dollars shifted away from public schools, and more children from middle-income families received vouchers to attend private schools.

Steps Cities Can Take Moving Forward

While education policy is administered at the local level, city governments often do not have direct oversight of their public schools. In some municipalities, school boards are jointly appointed by the mayor, city councilors, and/or the governor. In contrast, many school districts are independent special-purpose governments with leadership that is elected rather than appointed by city officials. In both of these scenarios, the policies of the new administration will likely add to the complexity of local-federal relationships in the education arena even more.

However, whether or not cities are directly responsible for their public schools, local governments can still lead (or expand) educational programs. Many cities offer programs during out-of-school times, either in the evenings or during the summer. These programs enrich the education experience, prepare students for specific careers, or help close the racial achievement gap.

Cities can also use data to improve their school systems. In the City of Nashville, for example, a partnership between Metro Nashville Public Schools (MNPS) and the city-funded afterschool program for middle school youth, the Nashville After Zone Alliance (NAZA), has significantly improved students’ reading ability in just three months. This is exactly the type of partnership and focus students need, especially if they are struggling or falling behind. In another example of partnerships, NLC’s Institute for Youth, Education, and Families teamed-up with MomsRising and School Readiness Consulting to produce Strong Start for Strong Cities, an early learning resource guide for mayors, councilmembers and other municipal leaders.

Finally, local elected officials can exercise leadership to support youth education beginning with pre-school, expand alternatives for students who struggle in traditional educational settings, increase high school graduation rates, and promote college access and completion.

To learn more about what NLC is doing in this policy arena – and make your voice heard at the federal level – join us at the Congressional City Conference in Washington, D.C., March 11-15.

Trevor Langan 125x150About the author: Trevor Langan is the Research Associate for City Solutions and Applied Research at the National League of Cities.

Meet Your Municipal Finance Advocate

“When cities are given the directive and the resources, projects just get done faster, more efficiently and with better end results.”

Every week leading up to the 2017 Congressional City Conference we’ll feature a “Meet Your City Advocate” spotlight as part of a series introducing you to NLC’s Federal Advocacy team. This week, I sat down with Brett Bolton, principal associate for finance & intergovernmental relations at NLC.

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Brett Bolton is the principal associate for finance and intergovernmental relations at the National League of Cities. (Brian Egan/NLC)

Name: Brett Bolton
Area of expertise: Finance and Intergovernmental Relations
Hometown: Pensacola, Florida

Hey Brett, thanks for taking the time to do this interview with me. Why don’t you share a little bit about your background and why you are passionate about cities?

I was born and raised in Pensacola, Florida – the Navy originally brought my mom’s family down that way. I went to college in Birmingham, Alabama, and grad school in Tallahassee, Florida, before eventually making my way up to Washington. After school, I interned for Congressman Steve Southerland in his D.C. office. He represented Florida’s second district – basically the area along the panhandle between Panama City and Tallahassee. I wound up getting a staff position as a legislative correspondent and stayed there for two years. After my time on the Hill, I lobbied for the state of Florida. Most of my work there focused on securing funding for the Everglades and building partnerships between the state and FEMA. And then I came to NLC.

Why am I interested in cities? Well, there are a couple of reasons. Hurricane Ivan hit Pensacola in 2005 and pretty much wiped out whole neighborhoods in the city. The storm and ensuing devastation were horrible, but it did bring together a lot of actors in the same room to discuss rebuilding. Local leaders helped play a role in creating a renaissance in the city, and today the downtown is booming and businesses are thriving. It made me proud to watch my hometown get back up on its feet after the worst had happened. More importantly, the whole experience sparked an interest in local politics for me.

Secondly, I happened to be finishing up a degree in public administration at Samford University in Alabama right as the surrounding Jefferson County entered into bankruptcy. At that time, it was the largest municipal bankruptcy filing, and I began following how local finance.

Right, so Birmingham’s restructuring process really guided you into the world of municipal finance?

Yeah, it played a role for sure. It was an interesting process to watch as an MPA candidate. Honestly, working on Everglade issues also opened my eyes to how much a project’s execution could be improved simply by infusing more local control and directing more money to local governments. When cities are given the directive and the resources, projects just get done faster, more efficiently and with better end results. I also realized that states and the federal government can be partners to cities, but cities often have to rely on their own financing capacity bridge the gap between what they need to do on a daily basis and what they have been provided.

Interesting. Along those lines, what do you think 2017 has in store for municipal finance?

Well, that’s the million-dollar question right there. There’s some uncertainty for sure, but I don’t think we should expect any immediate or sudden changes in this lane. As you probably know, Speaker Ryan released a plan for tax reform in June, President Trump campaigned hard for corporate and personal tax reform, and Congressman Brady, the House chair of the Ways and Means Committee, says there will be a tax reform proposal. At the end of the day there are a lot of promises, but the fact of the matter remains that we haven’t seen many details as of yet.

Nonetheless, this all leads me to believe some sort of tax policy proposals will happen, just maybe not this instant. That’s what resolves us to keep pushing so hard to make sure city interests and voices are well heard at the table. We’re out there, and we are pushing to make sure the tax-exempt status of municipal bonds is protected, that state and local tax deductions remain, and we’re still working to get Chairman Goodlatte, from the House Judiciary Committee, to address marketplace fairness.

Sounds like a busy 2017. So what is your spirit city? 

This is the hard one! Is it cheesy if I go with my hometown?

No, not at all!

You know what? I have to say Chicago here. I am a food fanatic and the city of broad shoulders has the best food in my opinion. Best steak, best pizza, best everything. It’s a beautiful city with great people.

You ever go to the food festival?

No, never. I need to go, though!

Join us at the 2017 Congressional City Conference and meet Brett and the rest of your City Advocates.

brian-headshotAbout the author: Brian Egan is the Public Affairs Associate for NLC. Follow him on Twitter @BeegleME.

 

What’s Next for President Trump’s Travel Ban

The executive order on refugees has had a significant impact on America’s cities – but it could also be an indicator of how the president’s executive orders will generally be interpreted throughout the legal system moving forward.

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Litigation will likely continue regarding President Trump’s travel ban, which prohibits refugees and other visitors from predominantly Muslim countries from entering the United States. (Getty Images)

On February 9, the Ninth Circuit Court refused to stay a district court’s temporary restraining order disallowing President Donald Trump’s travel ban from going into effect. The executive order prevents people from seven predominately Muslim countries from entering the United States for 90 days.

The states of Washington and Minnesota sued President Trump, claiming their public universities are harmed because students and faculty of the affected countries cannot travel for research, academic collaboration, or personal reasons. A wide swath of people are affected by this executive order, including refugees, legal residents, and visa holders who may have different rights and legal claims based on their status.

The government argued that the president has “unreviewable authority to suspend admissions of any class of aliens.” The Ninth Circuit disagreed, stating “there is no precedent to support this claimed unreviewablity, which runs contrary to the fundamental structure of our constitutional democracy.”

The Ninth Circuit agreed with the district court that the states are likely to succeed on the merits of their claim that the executive order violates the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees. More specifically, the executive order provides no notice and hearing before restricting a person’s right to travel and “contravenes the procedures provided by federal statute for refugees seeking asylum.”

Technically speaking, no court has yet ruled on the merits of this case – instead, the courts have only temporarily prevented the executive order from going into effect based on their view that the government is likely to ultimately lose. The purpose of a temporary restraining order is to stop a likely unlawful activity until a full briefing can occur to determine if unlawful activity is in fact occurring.

In response to the temporary restraining order, the president Tweeted, “SEE YOU IN COURT.” We have every reason to believe the litigation in this case will continue, so what are the president’s options?

A run-of-the-mill case would now go back to the district court where the legal issues would be fully briefed. The district court would then issue an opinion determining definitively whether the executive order is unconstitutional. That ruling could then be appealed back to the Ninth Circuit and ultimately the U.S. Supreme Court. However, President Trump has two other options.

First, he can ask the U.S. Supreme Court to stay the district court’s temporary restraining order while the case is being fully briefed at the district court. This request would go to Justice Anthony Kennedy, who oversees emergency appeals from the Ninth Circuit. Justice Kennedy could rule on this issue alone or ask the entire Court to rule (which is probably more likely). Five votes from the current eight Justices would be needed to temporarily reinstate the ban. As Amy Howe of SCOTUSblog notes, “if the government can’t get those votes – which could be difficult, given the temporary and relatively narrow nature of the court’s ruling – the ban could remain on hold while its full merits are litigated in the lower courts.”

Second, instead of going directly to the Supreme Court, President Trump could ask the entire Ninth Circuit to stay the district court’s temporary restraining order while the case is being briefed at the district court.

Two other technical points about this case that could affect whether and how it is litigated are noteworthy. First, the travel ban only lasts for 90 days, so at some point very soon the litigation in this case could be moot unless the president extends the travel ban. Second, President Trump could modify the executive order to cure the due process problems the Ninth Circuit pointed out. However, this might not be enough. Washington and Minnesota raised numerous claims in addition to due process which the Ninth Circuit did not rule on for the sake of expediency. However, the Ninth Circuit went out of its way to describe, but not rule on, the states’ religious discrimination claim – which at the very least implies that the court thought this claim might be valid as well.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Cities Are Part of the Prescription to Fix America’s Affordable Housing Crisis

Dr. Ben Carson will likely take over the Department of Housing and Urban Development (HUD) and its budget. HUD provides significant resources to cities and their residents – so when it comes to affordable housing assistance, what does that mean for cities?

(NLC)

(NLC)

This article was made possible with the research support of American University Department of Public Administration and Policy graduate students.

In the first installment of this series, we looked at the basics of federalism and why it matters for cities. In this post, we’ll look at how one policy – affordable housing assistance – has changed with the interpretation of federalism, and what that means for cities today.

An Affordable Housing Crisis

There is an unprecedented demand for rental housing, among all income levels. With rental markets tight, low- and moderate-income renters are having a difficult time finding housing. In America’s central cities, which house the majority of low-income renters, the problem is exacerbated by an overall decline in public housing developments and a steady increase in transferable vouchers. These cities are seeing an increase in the number of severely distressed renters and a decrease in the affordable housing supply.

While the federal government takes an active role in the housing space, local governments face tough decisions daily. The negative effects of homelessness and poor housing have real effects on resident well-being. And because property values are usually tied to revenues, city budgets are strongly affected by changes in the real estate market. The federal government works to support housing in all of these areas, but the tools available sometimes reflect past problems.

With his likely confirmation, Dr. Ben Carson will take over the Department of Housing and Urban Development (HUD) and its budget of over $40 billion (FY17 requested outlays). HUD provides significant resources to cities and their residents, including both rental and homeownership assistance. For this reason and others, housing policy offers an interesting look at the federal-city relationship.

Federal Housing Policy

The nature of federalism over the past 30 years has been defined by an interplay between economic and political realities. As the economy has expanded and contracted, governments at all levels have responded by expanding or cutting spending. Similarly, different administrations have had drastically different viewpoints on the size of government and the degree to which local problems warrant national solutions.

During the 1980s, a changing economy and the Reagan administration combined to drastically change the face of federalism. Increased reliance on block grants, incentivizing third-party partnerships, and limiting unrestricted funding all began during this time. To meet their aggressive fiscal goals, the federal government shifted from place-based to person-based aid. By redirecting the flow of federal assistance to people instead of places, housing vouchers became more portable since they were attached to eligible persons instead of eligible units; however, this shift decreased the amount of funding received by local governments. As a result, although federal aid increased by 78 percent from 1989 to 1994, states captured approximately 89 percent of the increase because states are the principal administrators of intergovernmental aid-to-persons programs.

By decreasing the use of direct federal funds allocated to affordable housing, localities were forced to become more involved in supplying affordable housing. This led to the practice of combining grants such as the Community Development Block Grant (CDBG), HOME block grant, and the Low-Income Housing Tax Credit (LIHTC). The Reagan administration’s emphasis on less federal spending and more private market solutions laid the foundation for the relationship of federalism and affordable housing policies that can still be felt by localities today.

In 1998, Bill Clinton and a Republican Congress enacted the Quality Housing and Work Responsibility Act, which sought to address the issues of deteriorating public housing, concentrations of poverty, and the allocation of subsidized rental assistance to individual households. The law continued the trend of devolving responsibility to lower levels of government by granting public housing authorities greater flexibility and authority.

Today, with the election of Donald Trump as president, the future of the Low-Income Housing Tax Credit has been called into question. The tax credit has subsidized the construction or renovation of a substantial number of multifamily units since its inception in 1986. Funding for new projects funded with LIHTCs have become less attractive as investors anticipate the new administration to reduce corporate tax rates. If the trend holds, this presents a significant worry to cities.

Recommendations

It is likely that the trend toward greater private involvement in affordable housing policy will continue into the future. Members of the new administration, including Dr. Carson, view housing assistance as a government handout that is not necessary to escape poverty. Undoubtedly, local leaders need to be innovative if they want to use yesterday’s tools to address today’s crisis. The following are recommendations for dealing with housing policy in the current federalism context:

Successfully leverage federal aid by drawing from as many programs as possible. Take advantage of the entire package. There are a number of programs and resources available to cities. Each has a different purpose and structure. Working in concert, these funds can be powerful tools for combating a city’s affordable housing crisis from all angles.

Low-cost initiatives like Inclusionary Zones can be successful, but don’t assume that they will work in all situations. There are always going to be new and innovative programs. Make sure these work for your city. When copying a successful model, cities must always evaluate whether administrative structures that have been used elsewhere can be duplicated. When copying a model program that relies on the cooperation of private actors, cities must also assess if there are enough similarities between the extra-governmental environment in the model city and their own.

Make the most of federal programs by making your city attractive to the private sector. Despite the difficulties brought by increased reliance on the private sector, cities can increase the odds of success by making themselves attractive to outside investment. Perhaps the easiest way to do this is to simply market existing opportunities to developers. Even if LIHTCs are distributed through state governments, cities can work to help developers apply for them and make the process to attain them as smooth as possible. Similarly, inclusionary zones with density bonuses are more likely to draw investment than inclusionary zones with punitive fees. The less organic interest there is in development, the more cities must do to encourage it. Unfortunately, there can come a point where no amount of promotion can overcome economic realities, and even the most innovating third-party partnership policies will flounder. It is these situations that highlight the continued need for stable federal aid more than what the market will provide.

To learn more about what NLC is doing in this policy arena – and make your voice heard at the federal level – join us at the Congressional City Conference in Washington, D.C., March 11-15.

Trevor Langan 125x150About the author: Trevor Langan is the Research Associate for City Solutions and Applied Research at the National League of Cities.

How Cities Can Support & Finance a Culture of Health

What does it take to ensure cities are healthier places to live, learn, work and play? A strategy that engages the right stakeholders.

(Getty Images)

Cities can create a Culture of Health by implementing a comprehensive approach that puts the health and well-being of all residents front and center. (Getty Images)

This post was co-authored by Kevin Barnett, Colby Dailey and Sue Pechilio Polis.

When leaders in local government, community development, and the health care system came together to develop a plan for rehabilitating a historic building – the Swift Factory in North Hartford, Connecticut – they viewed the building as a potential hub for community health.

Community Solutions partnered with the city, state, Saint Francis Hospital, and others to engage the community in dialogues about their health needs and concerns. Using resident feedback as a guide, they began the process of designing a building that will serve as a neighborhood hub for job creation, food production and health promotion. “We have the opportunity to reinvigorate one of the poorest communities in Connecticut,” said Rick Brush, CEO of Wellville and Director at Community Solutions. “Support from the city and state government was critical to bring together the collective vision, resources and innovative financing needed for success.”

Now more than ever – given tight budgets and fiscal constraints in cities – it’s critical for leaders and stakeholders to work together. Community anchor institutions such as hospitals are often one of the largest employers in communities and are essential partners in community health improvement efforts. Likewise, community development financial institutions (CDFI’s) also play a key role in financing strategies to improve neighborhoods and ensure better access in vulnerable communities to health improving resources, services and supports.

Here are two specific strategies cities can use to engage with these stakeholders:

Engaging Hospitals as Partners

The following strategies can help city leaders expand the depth and breadth of their existing relationships with hospitals to build healthier communities.

  1. Review Hospital Community Health Needs Assessments (CHNA’s). Give attention to how hospitals define their geographic communities (required by the IRS) and the degree to which their geographic parameters are inclusive of census tracts where poverty and associated health disparities are concentrated. In their analysis of population health dynamics, do they identify disparities by race and ethnicity only, or do they identify the communities where these populations are concentrated? An excellent public access tool to assist in the identification of these census tracts, hospital locations and other relevant factors is the Vulnerable Populations Footprint (VPF) tool.
  2. Compare CHNAs to Other Assessments. Review other assessments conducted by a variety of organizations (e.g., local public health agencies, United Ways, Community Action Agencies, Federally Qualified Health Centers) to identify opportunities for alignment of priorities and programs.
  3. Review Hospital Implementation Strategies (IS). Determine whether the programs outlined in the IS indicate a focus in communities where disparities are concentrated, or are they framed as “serving the community at large,” with broad dispersion of limited resources at the city, county or other broad geographic parameters. This provides an invaluable entry point for dialogue and analysis into ways in which resources of multiple organizations and entities may be better aligned and focused in order to produce a measurable impact.
  4. Focus on the Social Determinants of Health. Develop a matrix of priorities across organizations to identify potential alignment with city efforts to address various social determinants of health, including land use, affordable housing, food systems, transportation, planning with a focus on links to jobs, and livable wages.
  5. Build a Shared Sense of Ownership for Health. In an environment of increased transparency and public scrutiny, it is important to communicate an ethic of shared ownership for health in the engagement of hospital leaders. Communicate an interest in coming together to solve complex problems and optimally leverage the limited resources of diverse stakeholders including nonprofits, community development financial institutions (CDFI’s), city agencies, etc. Hospital leaders need to understand that the city and other stakeholders will be partners in the allocation of resources, including the development of public policies that offer the potential to scale and sustain positive outcomes.
  6. Build Capital to Support Community and Economic Development Projects. City leaders can set the tone for hospitals to consider investments in community infrastructure through tax incentives, loans, assistance with the permitting process, and informing development to ensure it meets the concerns of residents.

Engaging Community Development Financial Institutions

As city leaders look for ways to spur and leverage resources to ensure improvements in neighborhoods to promote improved health and safety, another key partner are Community Development sector actors, including Community Development Finance Institutions (CDFI’s) that bring investment capital and Community Development Corporations (CDC) that bring deep knowledge of a community needs and assets. The Community Development sector is in the leveraging business and can often help stretch limited resources through innovative financing including tax credits (e.g. new market tax credits), investment products (e.g. Healthy Futures Fund), and low-interest loans. As city leaders and staff consider outreach to local CDFI’s and CDCs, some good initial steps include:

Mayors, city leaders, hospitals and CDFIs can leverage and bolster each other’s efforts. By engaging with one another, identifying common ground, and collaborating across sectors, they can join forces to advance health equity and opportunity, creating communities where all people can live rewarding and healthy lives.

About the authors:

kevin-barnett-headshot_125x150Kevin Barnett, DrPH, MCP is a senior investigator with the Public Health Institute. Kevin has conducted applied research and fieldwork on two distinct but related issues: the charitable obligations of nonprofit hospitals and the diversity of the health professions workforce. Email him at kevinpb@pacbell.net.

colby_dailey-headshot-125x150Colby Dailey is the Managing Director of the Build Healthy Places Network and has worked for over a decade spearheading local, national, and global initiatives while cultivating and guiding cross-sector collaborations for collective measurable impact. Email her at cdailey@buildhealthyplaces.org.

sue_polis_125x150Sue Pechilio Polis is responsible for directing the health and wellness portfolio for the National League of Cities (NLC) as part of the Institute for Youth, Education and Families. Email her at polis@nlc.org.